VALENTINA MAXWELL V. JEFFERSON B. SESSIONS, No. 15-16520 (9th Cir. 2018)
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NOT FOR PUBLICATION FILED JUN 15 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT VALENTINA S. MAXWELL, Plaintiff-Appellant, No. U.S. COURT OF APPEALS 15-16520 D.C. No. 2:14-cv-02772-TLN-AC v. JEFFERSON B. SESSIONS III, Attorney General; et al., MEMORANDUM* Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding Submitted June 12, 2018** San Francisco, California Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges. Valentina S. Maxwell, a native and citizen of Russia, appeals pro se from the district court’s dismissal of her complaint under 8 U.S.C. § 1447(b) requesting a hearing on her naturalization application, for failure to state a claim. We have * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal of a complaint for failure to state a claim. Yith v. Nielsen, 881 F.3d 1155, 1161 (9th Cir. 2018). We reverse. The district court erred in dismissing Maxwell’s complaint for failure to state a claim, where the language of 8 U.S.C. § 1429 only bars the Attorney General, and not the district court, from considering a naturalization application when there is a removal proceeding pending against the applicant, and where Maxwell was not in removal proceedings pursuant to a “warrant of arrest,” but pursuant to a notice to appear. See 8 U.S.C. § 1429 (“[N]o application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act.”); Yith, 881 F.3d at 1165, 1168 (the statutory language of 8 U.S.C. § 1429 applies only to the Attorney General, not the district court, and thus the district court is not prevented from granting relief under 8 U.S.C. § 1447(b); § 1429 is inapplicable to applicants in proceedings pursuant to a notice to appear, which is different from a “warrant of arrest”). Accordingly, we reverse the district court and remand for further proceedings consistent with this decision. REVERSED and REMANDED. 2 15-16520
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